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HomeMy WebLinkAboutContract 52758 CITY SECRETARY . / CONTRACT NO.. 5)15�' ,-;Q � ., 2015 LOCAL ORGANIZING COMMITTEE AGREEMENT BETWEEN C1T(OF FORT w�R1H CITY OF FORT WORTH AND C`N SEGR�ARY FORT WORTH CONVENTION AND VISITORS BUREAU FOR THE EVENTS TRUST FUND This Agreement("Agreement")is entered into by and between the City of Fort Worth("City"),a home-rule municipal corporation of the State of Texas, acting by and through its duly authorized representative,and the Fort Worth Convention and Visitors Bureau,d/b/a Visit Fort Worth("FWCVB"),a non-profit corporation organized under the laws of the State of Texas, acting by and through its duly authorized representative. WHEREAS, article 5190.14 §5C, Texas Revised Civil Statutes, as amended ("Act") establishes the Events Trust Fund("ETF"), a tax program administered by the Economic Development and Tourism Division, Office of the Governor("EDT")that applies local and state gains from sales and use, auto rental, hotel occupancy,and alcoholic beverage taxes to help municipalities and counties offset the costs of hosting sporting and non-athletic events; WHEREAS,the FWCVB is a registered,non-profit corporation of the State of Texas; WHEREAS,the City wishes to designate FWCVB as its local organizing committee("LOC"),as such term is defined in article 5190.14 §1(7), Texas Revised Civil Statutes, as amended, to perform the following for the Event:(i)pursue an application and bid on the 2020 NCAA Women's National Collegiate Gymnastics Championship("Event"),which is scheduled to occur in April 2020;(ii)execute an agreement with the National Collegiate Athletic Association("NCAA")as the site selection organization concerning the bid to host the Event; and(iii)carry out any other obligations as set forth in this Agreement; WHEREAS,this Agreement is intended to set out the responsibilities and expectations of the City and FWCVB as they relate to the ETF for this Event only; NOW, THEREFORE, for and in consideration of the mutual covenants and agreements stated herein,the parties agree as follows: 1. INCORPORATION OF RECITALS 1.1 The City and FWCVB agree that the recitals set forth above are true and correct and form the basis upon which the parties have entered into this Agreement and incorporate them into the body of this Agreement. 2. RESPONSIBILITIES 2.1 The City hereby designates FWCVB as its LOC to manage and administer the ETF for the Event. FWCVB accepts such designation and agrees to perform the responsibilities, functions, and tasks set forth herein in accordance with the highest professional industry standards. 2.2 As part of its management and administrative obligations herein, the FWCVB agrees, at its sole cost and expense,to perform the following: (a) pursue an application and bid on the Event; OI;`1=1UAL RECORD CITY SECRETARY Local Organizing Committee Agreement with the FWCVB FT. WORTH,TXf (b) execute an agreement with the NCAA concerning the bid to host the Event; (c) execute any other agreements required by the Act to receive funding under the ETF, including,without limitation,an event support contract(as that term is defined in the Act); (d) perform all other aspects of a request for funding under the Act, including, without limitation, preparing or obtaining an economic impact study to determine the incremental tax increase related to the Event, and preparing disbursement requests and attendance certifications; (e) provide any and all funding for purposes of eligibility under the Act, including, without limitation,the payment of any deposit to the EDT for a local match; (f) disburse all ETF funds in accordance with this Agreement,the event support contract,and the Act; and (g) perform any other duties and responsibilities permitted of an LOC under the Act. 2.3 Notwithstanding anything to the contrary,to the extent that the City incurs any costs related to this Event that are reimbursable under the Act, then the City may submit a reimbursement request to the FWCVB, along with any supporting invoices. The FWCVB will be reimburse the City for the full amount of the City's costs on a first priority basis. The FWCVB must ensure that any event support contract specifically addresses this provision and the City's right to receive reimbursement for its costs on a first priority basis. 2.4 In the event that the City is required to pay a deposit to the EDT for the local match, then the FWCVB must reimburse the City for the entire amount of that deposit within thirty(30)calendar days after the City sends the FWCVB an invoice for payment. 2.5 FWCVB will not seek, and will not be entitled to,payment from the City for any costs or amounts not distributed by the EDT from the ETF established for this Event. 2.6 FWCVB must comply, or ensure compliance,with all deadlines set forth in the Act. 3. TERM AND TERMINATION 3.1 Unless terminated earlier pursuant to the terms hereof,this Agreement will be effective beginning on the Effective Date(as hereinafter defined in§7.13)and will terminate on the later of December 31,2020 or such date as all funds have been disbursed from the ETF pursuant to the Act. 3.2 The City may terminate this Agreement for convenience upon thirty (30) calendar days' written notice. 3.3 Either party may terminate this Agreement if the other party fails to comply with any term, provision, or covenant of this Agreement in any material respect. If an event of default occurs, the non- defaulting party will give written notice that describes the default in reasonable detail to the defaulting party. The defaulting party must cure such default within thirty(30)calendar days after receiving notice, unless otherwise agreed to in writing by the parties. Local Organizing Committee Agreement with the FWCVB 2 of 8 4. NOTICES 4.1 All notices, requests, demands, and other communications which are required or permitted to be given under this Agreement will be in writing and will be deemed to have been duly given upon the delivery or receipt thereof, as the case may be, if delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid, as follows: FWCVB: CITY OF FORT WORTH Attn: Robert Jameson Director, Public Events Fort Worth Convention and Visitors Bureau City of Fort Worth 111 W. 4t' Street, Suite 200 200 Texas Street Fort Worth,Texas 76102 Fort Worth,Texas 76102 With copy to: City Attorney Same address 5. INDEMNIFICATION 5.1 FWCVB COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY, HOLD HARMLESS,AND DEFEND,AT ITS OWN EXPENSE,CITY FROM AND AGAINST ANY AND ALL CLAIMS,LAWSUITS,JUDGMENTS,ACTIONS, CAUSES OF ACTION,LIENS,LOSSES, EXPENSES, COSTS, FEES (INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES AND COSTS OF DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES, LIABILITIES, AND SUITS OF ANY KIND OR NATURE,INCLUDING,BUT NOT LIMITED TO,THOSE FOR PROPERTY OR MONETARY LOSS, OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS SOUGHT, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF, IN CONNECTION WITH, OR RESULTING FROM ANY ACT, ERROR, OR OMISSION OF FWCVB AND ITS RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT. 5.2 IF ANY ACTION OR PROCEEDING SHALL BE BROUGHT BY OR AGAINST THE CITY IN CONNECTION WITH ANY SUCH LIABILITY OR CLAIM,COMPANY,ON NOTICE FROM CITY,MUST DEFEND SUCH ACTION OR PROCEEDING,AT FWCVB'S EXPENSE,BY OR THROUGH ATTORNEYS REASONABLY SATISFACTORY TO CITY. 5.3 IT IS AGREED WITH RESPECT TO ANY LEGAL LIMITATIONS NOW OR HEREAFTER IN EFFECT AND AFFECTING THE VALIDITY OR ENFORCEABILITY OF THE INDEMNIFICATION OBLIGATION UNDER THIS SECTION 5,SUCH LEGAL LIMITATIONS ARE MADE A PART OF THE INDEMNIFICATION OBLIGATION AND WILL OPERATE TO AMEND THE INDEMNIFICATION OBLIGATION TO THE MINIMUM EXTENT NECESSARY TO BRING THE PROVISION INTO CONFORMITY WITH THE REQUIREMENTS OF SUCH LIMITATIONS, AND AS SO MODIFIED, THE INDEMNIFICATION OBLIGATION SHALL CONTINUE IN FULL FORCE AND EFFECT. Local Organizing Committee Agreement with the FWCVB 3 of 8 5.4 This section will survive the expiration or early termination of this Agreement. 6. INSURANCE 6.1 FWCVB must furnish to City certificates of insurance as proof that it has secured and paid for policies of commercial insurance as specified herein. 6.2 Such insurance must cover all insurable risks incident to or in connection with the execution, performance, attempted performance or nonperformance of this Agreement. For the term of this Agreement, FWCVB must maintain the following coverages and limits thereof: a. Commercial General Liability LCGL)Insurance i. $500,000 each occurrence ii. $1,000,000 aggregate limit b. Professional Liability—Errors& Omissions i. $1,000,000 Each Occurrence ii. $1,000,000 Annual Aggregate Limit C. Business Automobile Liability Insurance i. $1,000,000 each accident on a combined single-limit basis, or ii. $250,000 Property Damage iii. $500,000 Bodily Injury per person per occurrence iv. $2,000,000 Aggregate V. Insurance policy shall be endorsed to cover "Any Auto", defined as autos owned, hired,and non-owned. d. Pending availability of the above coverage and at the discretion of City,the policy shall be the primary responding insurance policy versus a personal auto insurance policy if or when in the course of FWCVB's business as contracted herein. e. Workers' Compensation Insurance i. Part A: Statutory Limits ii. Part B: Employer's Liability (a) $100,000 each accident (b) $100,000 disease-each employee (c) $500,000 disease-policy limit 6.3 Additional Requirements a. Such insurance amounts will be revised upward at City's reasonable option and no more frequently than once every 12 months,and FWCVB will revise such amounts within thirty (30)days following notice to FWCVB of such requirements. b. FWCVB will submit to City documentation that it has obtained insurance coverage and has executed bonds as required in this Agreement prior to payment of any monies provided hereunder. C. Where applicable, insurance policies required herein shall be endorsed to include City as an additional insured as its interest may appear. Additional insured parties shall include employees, representatives, officers, agents,and volunteers of City. Local Organizing Committee Agreement with the FWCVB 4 of 8 d. The Workers' Compensation Insurance policy shall be endorsed to include a waiver of subrogation, also referred to as a waiver of rights of recovery, in favor of City. Such insurance shall cover employees performing work on any and all projects. FWCVB or its contractors shall maintain coverages, if applicable. In the event the respective contractors do not maintain coverage, FWCVB must maintain the coverage on such contractor, if applicable, for each applicable contract. e. Any failure on part of City to request certificate(s)of insurance shall not be construed as a waiver of such requirement or as a waiver of the insurance requirements themselves. f. Insurers of FWCVB's insurance policies shall be licensed to do business in the state of Texas by the Department of Insurance or be otherwise eligible and authorized to do business in the state of Texas. Insurers shall be acceptable to City insofar as their financial strength and solvency and each such company shall have a current minimum A.M. Best Key Rating Guide rating of A-: VII or other equivalent insurance industry standard rating otherwise approved by City. g. Deductible limits on insurance policies shall not exceed $5,000 per occurrence unless otherwise approved by City. h. In the event there are any local, federal or other regulatory insurance or bonding requirements for FWCVB's operations, and such requirements exceed those specified herein,the former shall prevail. i. FWCVB shall require its subcontractors to maintain applicable insurance coverages,limits, and other requirements as those specified herein; and, FWCVB shall require its subcontractors to provide FWCVB with certificate(s) of insurance documenting such coverage. Also, FWCVB shall require its subcontractors to have City and FWCVB endorsed as additional insured's(as their interest may appear)on their respective insurance policies. j. Professional Liability coverage shall be in force and may be provided on a claim's made basis. This coverage may also be referred to as Management Liability, and shall protect the insured against claims arising out of alleged errors in judgment, breaches of duty and wrongful acts arising out of their management duties. 7. GENERAL PROVISIONS 7.1 No Waiver of Immunity. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers or immunities. 7.2 Amendments. No alteration, change, modification or amendment of the terms of this Agreement will be valid or effective unless made in writing and signed by both parties hereto and approved by appropriate action of City. 7.3 Waiver. No waiver of performance by either party will be construed as or operate as a waiver of any subsequent default of any terms,covenants,and conditions of this Agreement. Local Organizing Committee Agreement with the FWCVB 5 of 7.4 Governing Law and Venue. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement,venue for such action will lie in state courts located in Tarrant County,Texas or the United States District Court for the Northern District of Texas—Fort Worth Division. This Agreement will be construed in accordance with the laws of the State of Texas. 7.5 Successors and Assigns. Neither party hereto will assign or transfer its interest herein without prior written consent of the other party,and any attempted assignment or transfer of all or any part hereof without such prior written consent will be void. This Agreement is binding upon and will inure to the benefit of the City and FWCVB and its respective successors and permitted assigns. 7.6 Third-Party Beneficiaries. The provisions and conditions of this Agreement are solely for the benefit of the City and FWCVB, and any lawful successor or assign, and are not intended to create any rights, contractual or otherwise,to any other person or entity. 7.7 Contract Construction. The parties acknowledge that each party and, if it so chooses, its counsel have reviewed and revised this Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party must not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. 7.8 Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable,the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired. 7.9 Captions and Headings. Captions and headings used in this Agreement are for reference purposes only and will not be deemed a part of this Agreement. 7.10 No Joint Venture. Nothing herein will be construed as the creation of a partnership or joint enterprise between the City and FWCVB,or its officers,agents,servants,employees or subcontractors; and the doctrine of respondeat superior will have no application between the City and FWCVB. It is further understood that the City will in no way be considered a co-employer or joint employer with FWCVB, or any of its officers,agents, servants,employees or subcontractors. Neither FWCVB, nor any of its officers, agents, employees, servants, contractors and subcontractors will be entitled to any employment benefits from the City. The City and FWCVB retain the exclusive control of and exclusive right to control the details of the work that each performs under this Agreement and all persons performing the same. 7.11 Audit. The City will have the right to audit the financial and business records of the FWCVB as they relate to the ETF program (collectively"Records")at any time during the term of this Agreement and for three (3)years thereafter in order to determine compliance with this Agreement. Throughout the term of this Agreement and for three(3)years thereafter,FWCVB will make all Records available to City at 200 Texas Street, Fort Worth, Texas or at another location in City acceptable to both parties following reasonable advance notice by City and will otherwise cooperate fully with City during any audit. Notwithstanding anything to the contrary herein, this section will survive expiration or earlier termination of this Agreement. 7.12 Force Majeure. If either party is unable, either in whole or part,to fulfill its obligations under this Agreement due to acts of God; strikes, lockouts, or other industrial disturbances; acts of public enemies; wars; blockades; insurrections; riots; epidemics; public health crises; earthquakes; fires; floods; restraints or prohibitions by any court,board,department,commission,or agency of the United States or of any state; declaration of a state of disaster or of emergency by the federal, state, county, or City government in accordance with applicable law; issuance of an Imminent Threat Alert or Elevated Threat Alert by the United States Department of Homeland Security or any equivalent alert system that may be instituted by any agency of the United States; any arrests and restraints; civil disturbances; or explosions; or some other Local Organizing Committee Agreement with the FWCVB 6 of 8 reason beyond the party's reasonable control (collectively, "Force Majeure Event"), the obligations so affected by such Force Majeure Event will be suspended only during the continuance of such event. 7.13 Fiftective Date. This Agreement becomes effective when signed by the last party whose signing makes the agreement fully executed. 7.14 Compliance with Laws. The parties agree to comply with all federal, state and local laws, ordinances, rules and regulations. 7.15 Review-by Counsel. The parties represent that they have consulted, or had the opportunity to consult,an attorney to seek legal counsel regarding the contents and effects of this Agreement. 7.16 Multiple Counterparts. This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A signature received via facsimile or electronically via email will be as legally binding for all purposes as an original signature. 7.17 Non-1:XCIuSiye Remedies. No remedy herein conferred or reserved is intended to be exclusive of any other available remedy or remedies,and each and every such remedy shall be cumulative and shall be in addition to every such remedy given under this Agreement or now or hereafter existing at law or in equity or by statute. It is expressly agreed that the remedy at law for breach by a party of its obligations hereunder may be inadequate in view of the complexities and uncertainties in measuring the actual damages that would be sustained by reason of either party's failure to comply fully with each of such obligations. Accordingly, the obligations of each party hereunder are expressly made enforceable by specific performance. if it becomes necessary for any party to this Agreement to bring suit to enforce or interpret the provisions hereof, the prevailing party to such suit shall be entitled to its reasonable and necessary attorney's fees and costs.\ 7.18 Entire Agreement. This writing embodies the entire Agreement and understanding between the parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiples to be effective as of the Effective Date set forth in this Agreement. CITY OF FORT WORTH FORT WORTH CONVENTION A_VD VISITORS BUREAU D/B/A VISIT FORT WORTH By: By: _ Jesus Chapa Robert Jameson Assistant City Manager President and CEO Date: �'l �f Date: 09/10/2019 OFPCIAL RECORD CITY SECRETARY Local Organizing Committee Agreement with the FWCVB FT WOR 1 ? TX Contract Compliance Manager: By signing, I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all perfo nce and reporting requirements. Brandy Ar leta Program Qpirdinator APPROVED AS TO FORM AND LEGALITY: T le arch ; Assistant City Attorne � of?T t, AT-PST: Mary y er ` City Secretary No M&C Necessary OFFICIAL RECORD CITY SECRETARY ET. WORTH,TX Local Organizing Committee Agreement with the FWCVB 8 of 8